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Elon Musk's basic misunderstandings of free speech are a problem for all of us
MSNBCSince his takeover of Twitter, Elon Musk has insisted, over and over again, that one of his major goals for the massive social media platform is to protect free speech on the site. That’s a noble aspiration. The problem is that his behavior increasingly suggests either that he has no idea what that means, or, even worse, he does, and he’s just not being honest. Either way, Musk (and those who have somehow been persuaded that he knows what he’s talking about) could use a crash course in what does — and doesn’t — violate the First Amendment.
Let’s start with the so-called “Twitter Files.” Thursday, we got a second installment of the files courtesy of Bari Weiss. Last week Musk, together with Matt Taibbi, released the first installment: a trove of documents supposedly demonstrating that Twitter had inappropriately suppressed material relating to Hunter Biden’s laptop in the run-up to the 2020 presidential election at the request of individuals associated with the Biden campaign. In his own tweets reacting to Taibbi’s thread, Musk made two claims about the First Amendment. First, he wrote that “Twitter acting by itself to suppress free speech is not a 1st amendment violation, but acting under orders from the government to suppress free speech, with no judicial review, is.” Second, in response to another tweet about one of Taibbi’s supposed bombshells, Musk rhetorically asked “If this isn’t a violation of the Constitution’s First Amendment, what is?” In both cases, Musk’s claim is that the Biden campaign’s requests to have tweets taken down constituted not just a violation of the First Amendment, but an egregious one. In every possible respect, Musk is dead wrong.
The free speech clause of the First Amendment, like virtually every provision of the Constitution (except the Thirteenth Amendment, prohibiting slavery; and the Eighteenth Amendment, imposing prohibition), applies only to “state action.” A private business no more violates the First Amendment by banning particular types of speech in its operations than I violate the First Amendment by not allowing particular types of speech in my home. And although some have suggested in recent years that social media platforms, like Twitter, ought to be treated as if they were government actors for purposes of the First Amendment, the Supreme Court, in its one recent chance to endorse that argument, declined to do so. Thus, it is settled law that Twitter, at least acting by itself, cannot violate the First Amendment no matter what it does.
Let’s start with the so-called “Twitter Files.” Thursday, we got a second installment of the files courtesy of Bari Weiss. Last week Musk, together with Matt Taibbi, released the first installment: a trove of documents supposedly demonstrating that Twitter had inappropriately suppressed material relating to Hunter Biden’s laptop in the run-up to the 2020 presidential election at the request of individuals associated with the Biden campaign. In his own tweets reacting to Taibbi’s thread, Musk made two claims about the First Amendment. First, he wrote that “Twitter acting by itself to suppress free speech is not a 1st amendment violation, but acting under orders from the government to suppress free speech, with no judicial review, is.” Second, in response to another tweet about one of Taibbi’s supposed bombshells, Musk rhetorically asked “If this isn’t a violation of the Constitution’s First Amendment, what is?” In both cases, Musk’s claim is that the Biden campaign’s requests to have tweets taken down constituted not just a violation of the First Amendment, but an egregious one. In every possible respect, Musk is dead wrong.
The free speech clause of the First Amendment, like virtually every provision of the Constitution (except the Thirteenth Amendment, prohibiting slavery; and the Eighteenth Amendment, imposing prohibition), applies only to “state action.” A private business no more violates the First Amendment by banning particular types of speech in its operations than I violate the First Amendment by not allowing particular types of speech in my home. And although some have suggested in recent years that social media platforms, like Twitter, ought to be treated as if they were government actors for purposes of the First Amendment, the Supreme Court, in its one recent chance to endorse that argument, declined to do so. Thus, it is settled law that Twitter, at least acting by itself, cannot violate the First Amendment no matter what it does.
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on the citizenship test. 
